Farai Dzimiru v Zimphos

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/215/13
HELD AT HARARE 14TH FEBRUARY 2013
CASE NO LC/H/243/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE 	    JUDGMENT NO LC/H/215/13

HELD AT HARARE 14TH FEBRUARY 2013	    CASE NO LC/H/243/12

In the matter between:-

FARAI DZIMIRI					Appellant

And

ZIMPHOS							Respondent

Before The Honourable G Mhuri, Senior President

For Appellant		Mr Pendei (Regional Organising Secretary

ZIMBABWE CHEMICAL & FERTILIZERS WORKERS UNION)

For Respondent		Mr E.T. Moyo (Legal Practitioner)

MHURI, G:

By a letter dated the 12th December 2011 Appellant was notified of a disciplinary hearing where he was to answer a charge of gross negligence or wrongful act or omission that causes loss to the employer, accident, injury, or death at work.

This was in terms of schedule 4 sub clause 16 of The Collective Bargaining Agreement: Chemical and Fertilizers Manufacturing Industry S.I. 31 of 2011(THE CODE)

It was alleged that on the 21st November 2011 when Appellant was the driver shunting wagons from the bulk loading point to the Dispatch yard, the locomotive he was driving hit the ZFC gate and damaged it.

After the hearing by the Grievance Disciplinary Committee on the 5 January 2012 a guilty verdict was returned and a dismissal penalty imposed.

Aggrieved by both the verdict and penalty, Appellant noted an appeal to the General Manager who dismissed the appeal and upheld the Grievance Disciplinary Committee’s decision.  A further appeal was noted with the Acting Chairman of the NEC for the Chemicals and Fertilizers Manufacturing Industry which again dismissed the appeal.

It is to this Court that Appellant thereafter turned.  His grounds of appeal were initially 4 but the 2nd one was withdrawn.  The grounds are:-

the NEC erred at law in finding that the Disciplinary Committee was properly constituted.

The NEC erred at law in finding the Appellant liable for an act which he was not responsible for,

The NEC grossly misdirected itself in finding the Appellant’s mitigation as aggravating.

It was Appellant’s submission that the NEC

Appeals Committee erred in holding that the  Grievance Disciplinary Committee was properly composed when infact it was composed of 3

management representatives and 2 worker representatives.  Appellant argued that this composition was improper as it was against the The Code which requires that there be equal membership which membership includes the chair person.

Clause 6 sub clause 3 of the eighth schedule of the Code provides for the composition of the Disciplinary Committee. It reads:-

“There shall be established a disciplinary committee for each work place composed of equal number of worker representatives and management representatives of up to a maximum of four from either party.  Unequal numbers means there is no quorum hence the hearing shall not proceed.”

The disciplinary committee shall be chaired by a member from the management (provided....) who in the event of equality of votes, the chairperson shall exercise a casting vote.”

A reading of sub clause 3 (i) clearly shows that

the members of the disciplinary committee must be equal in number.  If there is to be 3 management representatives then there must also be 3 worker representatives.  The 6 will constitute the Disciplinary Committee.

Sub clause 3 (i) goes further to state that unequal numbers means there is no quorum and where there is no quorum the hearing shall not proceed.

The provision is clear and unambiguous.

Sub clause 3 (ii) is to be read in conjunction with sub clause (i).  The Chair person therefore shall be one of the management representatives. To appoint a chair person from management outside those referred to in sub clause (i) will be going against the spirit and intention of the first part of sub clause (i).  It means therefore that there is no quorum as the numbers will not be equal but odd due to the addition of the extra person who acts as chair person.

The intention of the drafters of the Code is clearly seen in the wording of  sub clause 3 and clause 7.

A distinction is to be made between sub clause 3 and clause 7.

1 “Composition of THE NEC Appeals Committee

The NEC Appeals Committee shall be composed of:-

two representatives from the Trade Union

two representatives from the Employers Organisation

The Chair person and the Secretary of the

Committee shall be from the NEC or NEC Chairman.  The Chairperson shall exercise a casting vote in the event of an equality of votes: Provided that any three members shall form a quorum.”

It is clear from clause 7 that the chairperson shall not be from one of the representatives side but from a different body altogether thereby making the committee numbers unequal, (5).  It is also clear from the proviso that an unequal number of members can form a quorum unlike under sub clause 3 (i) which prohibits that.

In casu, the Disciplinary Committee was composed of:-

V Makaya	  		GDC Chairperson

N Nyamutukwa		GDC Management representative

K Chiguvari		GDC Management representative

G Chirume		GDC Worker representative

M Shumba			GDC Worker representative

Making a total of 5 members.  Clearly this was in contravention of sub clause 3 (i).

I am in total agreement with Appellant’s representative that this was wrong and that the Appeals Committee erred in finding that the Disciplinary Committee was properly constituted.

Having thus found, does the said irregularity vitiate the entire proceedings?

It was held in the case Jockey Club of SA & Ors v Feldan 1942 AD 340 at 341 that

“If an irregularity in the proceedings of a Court of Justice in a civil case or of a private tribunal created by agreement is calculated to prejudice a party he is entitled to have the proceedings set aside unless the Court is satisfied that the irregularity did not prejudice him.”

The same principle was adopted by Sandura JA (as he then was) in the case of Tichawana Nyahuma vs Barclays Bank (Pvt) Ltd SC 67/05.

See also

Rajah & Rajah (Pvt) Ltd and others v Ventersdorp Municipality and Others 1961 (4) SALR 402 (AD)

From the record of proceedings of the

disciplinary hearing, it is clear that the Chairman was part of the Grievance Disciplinary Committee.  He fully participated in the hearing and the deliberations as part of the Grievance Disciplinary Committee.

As was also pointed out in the case Mineral Marketing Corp v Mazvimavi  1995 (2) ZLR 353 (S)the extent to which he may have influenced the other members or hampered their discussions is not known.

His presence in my view was calculated to cause prejudice to Appellant. In dealing with the similar issue of allowing an extra person to be a member of the Disciplinary Committee Gubbay CJ (as he then was) held that

“the composition of the disciplinary committee was set out by the code, thus did not include the human resources manager.  While Mr Sibanda was not present as a member of the committee nor was he present merely as an observer.

Allowing him to be present other than a silent observer went beyond the parameters of the code.

This was a procedural irregularity which, if not vitiating the proceedings, rendered them viodale at the instance of Respondent.”

Minerals Marketing Corp case (supra)

(emphasis added)

In the case of King Motton Mlambo v Grain Marketing Board HCH 45/95 Smith J (as he then was) had this to say

“It is advisable that employers comply with the requirements of any code of conduct that they have adopted.  If they fail to do so there is always a possibility that any action taken without proper compliance of the code will be set aside.”

To that end, having found that the procedural irregularity was fatal, it vitiated the entire proceedings, I will set aside the entire proceedings without going into the merits and order a re-hearing before a properly constituted Grievance Disciplinary Committee in accordance with the principle as laid down in Dalny Mine v Musa Banda SC34/99

Accordingly it is ordered as follows:-

that the entire proceedings (starting with the Grievance Disciplinary Committee proceedings) be and are hereby quashed.

The matter be and is remitted for a hearing de novo by a different but properly constituted Grievance Disciplinary Committee.

The said rehearing  is to be instituted within 20 working days of the date of this judgment upon failure  to meet the time limits, Respondent can approach this Court for leave to extend the time limit, upon failure of which Appellant shall be considered reinstated to his original position with effect from the date the 20 working days expire.

Zimbabwe Chemicals & Fertilizers Workers Union, Appellant’s Representative

Scanlen & Holderness, Respondent’s Legal Practitioners